Texas Gov. Gregg Abbott does not like the constitutional right to bail.


Under Article 1, Section 11 of the Texas Constitution’s Bill of Rights, “all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident …” This constitutional right has been codified in Title 1, Chapter 17 of the Texas Code of Criminal Procedure. 


The 8th Amendment to the U.S. Constitution state that “excessive bail shall not be required.”


Though it may sound harsh, Gov. Abbott would prefer that this “right to bail” be reserved for people like his political accomplice and indicted Texas Attorney General Ken Paxton. In other words, that bail should exist as a right for white males, preferably landowners (as required in the original Bill of Rights in the U.S. Constitution), who have “sufficient sureties” to buy their way out of jail pending a criminal trial.


Governor Abbott and Republicans Protect Cash Bail Industry


This Abbott belief system, rooted in American white male supremacy, was evidenced after U.S. District Court Judge Lee Rosenthal in 2017 ruled that the Harris County bail system was unconstitutional because its wealth-based structure discriminated against the poor and people of color.


The month before this historic newly elected Harris County Sheriff Ed Gonzales had called upon county judges to implement meaningful bail reform measures. The sheriff, a defendant in the lawsuit, testified in favor of the plaintiffs’ lawsuit pending before Judge Rosenthal. In July 2019 the Harris County Commissioners Court reached a settlement in the bail reform lawsuit. The essence of the settlement was that a misdemeanor defendant could not be held in jail simply because they cannot afford a cash bond.


Abbott and his right-wing cohort Attorney General Paxton were not about to let their favored wealth-based cash bail system die in the discarded ashes. Instead, in their motion to dismiss the lawsuit, they informed Judge Rosenthal that they not only opposed this settlement but any measure that would allow the poor and people of color to have greater opportunity for release pending disposition of their case.


In a 65-page response, Judge Rosenthal countered by dismissing the Abbott/Paxton efforts to impede the judge’s bail reform initiatives.


Abbott did not take kindly to the federal judge’s rebuff. 


Texas Governor Uses Bail Reform as Dog Whistle


In his February 2021 State of the State address, the Governor, speaking primarily to his white conservative political base, declared the Texas bail system flawed and promised to fix it with the Damon Allen Act. This bail act would require Texas judges to use a risk assessment protocol before making a bail decision, prevent personal recognizance for many offenses, and allow judges to deny bail in others. It was a terrible bill contemptuously styled as bail reform. It did nothing to address the widespread problem of lengthy detention of people accused of non-violent or drug offenses who cannot afford cash bonds. The bill also did nothing to set out standards for the presumption to release or require release on the least restrictive means possible.


In effect, the Damon Allen bail act would make securing pretrial bail release, especially for the poor and people of color, more difficult than it had been before Judge Rosenthal’s 2017 ruling. People of privilege, social stature, and wealth—most of whom are white like Attorney General Paxton—would not have to undergo “risk assessment.” Instead, they would only have to put up sufficient cash or property to walk out of jail before trial.


Gov’s Bail Reform Acts Dies as Lege Walks Out


Abbott did not get the “bail reform” he promised to the GOP. The Governor’s “priority” bail legislation. House Bill 20, died as collateral damage after Democrats broke quorum by walking out of the Legislature to defeat the Republican-led effort to enact the most suppressive voting legislation in modern American history, SB 7.


Both pieces of legislation, the anti-bail, and anti-voting acts, were both racist in their intent and motivated by the desire to perpetuate Texas’ history of systemic racism toward people of color. They deserved the death knell they received on the Republican-controlled House floor. 


In a petulant political snit, Abbott promised to revive both bills in a special session. We are sure he will try.


Bail reform is not a difficult issue. It has two essential components: ensure public safety and protect the presumption of innocence. Those two goals are not incompatible. But the road to bring the two together is this: Republicans must accept that the state’s county jails are not bastions to protect white Texans from people of color. They are facilities where people “accused” of crime are temporarily placed before being released back into the community pending trial, as intended by the Texas Constitution. Detention should only be an option if the state can prove an “accused” is a danger to the community or a risk of flight/failure to appear in court.


If Attorney General Paxton can not only walk free in the community but serve as the state’s chief law enforcement officer while awaiting trial on felony securities fraud charges, then every other non-violent, low risk defendant should enjoy the same privilege.


Abbott and Paxton do not think so.


The Governor has called a special session to start on July 8th. He has yet to set an official agenda for the special session, but bail “reform” and corrupting elections have been his priority since the legislative walkout. While Texas faces real imminent problems with its electrical grid and post-COVID economic recovery, we are left to dread what the Governor has in mind for his “special” session as he simmers in his Trumped-up, petulant, racist stew.